Affirmative Injustice

From left to right: Associate Justices Amy Coney Barrett, Neil M. Gorsuch, Sonia Sotomayor, and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Associate Justices Ketanji Brown Jackson, Samuel A. Alito, Jr., Elena Kagan, and Brett M. Kavanaugh.
Credit: Collection of the Supreme Court of the United States

Someday in a future United States of America — maybe 50 years from now, maybe 100 — this week’s decision of the Supreme Court in the twin cases of Students for Fair Admissions v. Harvard College and the University of North Carolina (case titles condensed) will be viewed in the same dim light as we view the long-repudiated 1896 opinion in Plessy v. Ferguson today.  The Plessy case created the “separate but equal” doctrine that lasted for half a century in American education until overturned by Brown v. Board of Education in 1954.  Ironically, sadly and quite wrongly, Chief Justice John Roberts’ opinion in the Harvard/UNC case uses Brown to justify barring universities from considering race in making admissions decisions.  This decision doesn’t just prohibit the use of affirmative action in college admissions, but, worse, it rolls back nearly 70 years of progress in developing something resembling a moderately level playing field for students of color to gain admission to the most elite universities in the nation.

The majority opinion in the Harvard/UNC case states that the Equal Protection Clause of the 14th Amendment requires an absolutely colorblind approach to college admissions.  The fact that five of the six majority justices are white, and all six were educated at elite institutions reinforces their obvious agnosticism about the lived experience of many, if not most, Black, Hispanic, Asian and other students of color whose lives are so very different from the privileged elite.  The playing field is far from level, but the majority justices seem oblivious to that essential fact.

Note that IPEDS data reveals that the Harvard student body is just 6% Black, 9% Hispanic.  The UNC student body is 9% Black and 9% Hispanic.  With such relatively low proportions of Black and Hispanic students — even after years of affirmative action — we really have to wonder whose privilege is denied, whose playing field is made steeper because of taking race into account in admissions to those schools.  It’s important to note here, as the Court also acknowledges, that consideration of race in admission comes after making sure that the applicant is qualified and meets all academic standards for admission.  Contrary to the shameful canard used by conservative critics of affirmative action, the practice does not favor lesser qualified students, but simply allows consideration of students who might otherwise be left on the sidelines.  It’s interesting to note that the Roberts opinion acknowledges legacy (children of alums or donors) as an admissions factor but does not ban that practice which largely favors wealthy white students.

The Roberts opinion is utterly devoid of cultural context or even acknowledgement of the legacy and still-real presence of racial injustice in our society.  No where in his opinion is there any hint that the author even begins to understand the shameful legacy of slavery in this nation, the protracted impact of racism and white supremacy on succeeding generations, the struggle of so many generations of Black students to rise above the poverty and violence that are the legacy of historic racial injustice in our cities and school systems.  Roberts writes with the antiseptic view of a lawyer immersed in citations and legal jargon, a man too long accustomed to the marble hallways and dulcet whispers of power in Washington; I found myself wondering if he ever drove by himself across the Frederick Douglass Bridge to visit some of the neighborhoods and schools in Wards 7 and 8.  Has he ever looked at maps of Washington color coded to show healthcare disparities, food deserts, adult illiteracy and other chronic issues of poverty?  He would see starkly that the playing fields are far from level right here in his hometown.  He would not have to go far —- but it would be the journey of a lifetime for him.  But he would have to be interested to go there.

If he took a minute to contemplate those same color-coded maps, he would also understand the crux of the problem about admissions to elite universities:  students from the well-fed, well-educated, highly tutored and coached neighborhoods of the northwest quadrant of the city will do quite well in their quests to get into colleges that will continue the success trajectory they started in the best pre-K schools.  They will go on from Harvard and elsewhere into the economic powerhouses of corporate commerce, law, politics.  Those students are predominantly white from already wealthy families.  In many cases, their admission to their preferred universities will be part of the legacy system in which the children of alumni and donors have doors opened for them.  Roberts’ opinion acknowledges the use of legacy admissions at Harvard and elsewhere, but he does not seem to understand legacy as a form of affirmative action for wealthy white applicants.

It was left up to the two women of color on the Supreme Court to speak the truth of lived experience to the power of the privileged elite:  Justice Sonia Sotomayor opened her dissent in this way:

“Today, this Court stands in the way and rolls back decades of precedent and momentous progress . It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits . In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.  The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society.”

Justice Sotomayor’s dissenting opinion goes on to provide the deep history lesson that Chief Justice Roberts dismissed as irrelevant.

Justice Ketanji Brown Jackson, the only Black woman on the Supreme Court, provided a remarkable dissenting opinion chock full of lived experience and historical context.  After reviewing the roots and contemporary realities of the racial wealth gap, housing and educational inequality, she calls out the majority with piercing and righteous anger leaping off the page:

“With let-them-eat-cake obliviousness , today , the majority pulls the ripcord and announces colorblindness for all by legal fiat . But deeming race irrelevant in law does not make it so in life. And having so detached itself from this country’s actual past and present experiences , the Court has now been lured into interfering with the crucial work that UNC and other institutions of higher learning are do ing to solve America’s real-world problems. No one benefits from ignorance . Although formal race linked legal barriers are gone, race still matters to the lived experiences of all Americans in innumerable ways , and to day’s ruling makes things worse , not better . The best that can be said of the majority’s perspective is that it proceeds (ostrich -like) from the hope that preventing consideration of race will end racism . But if that is its motivation , the majority proceeds in vain. If the colleges of this country are required to ignore a thing that matters , it will not just go away. It will take longer for racism to leave us . And, ultimately , ignoring race just makes it matter more.”

Perhaps none of us should be overly surprised to see that, in the Roberts opinion, he devotes several long and tedious pages to mocking, castigating, correcting and patronizing Justice Brown Jackson.  She held her own in her dissent, but the rude contempt of the majority opinion tells us all we need to know about how the majority actually view a Black woman who dares argue with them publicly.  And therein lies the whole issue of race in America.

Where do we go from here?

For Harvard, UNC and the relatively small band of very elite universities with very small populations of students of color, the urgent need to find a way to continue to enroll more well qualified Black, Hispanic and Asian students is quite clear.  Those institutions are smart, surely they will find a way to comply with the letter of the law while embracing the spirit of racial justice in higher education.

For the larger majority of colleges and universities in our nation, affirmative action is not so big an issue since many already welcome significant numbers of students of color without using affirmative action methods.

For the Historically Black Colleges and Universities, as well as the Predominantly Black Institutions and Hispanic Serving Institutions (Trinity has both designations) and others in the Minority Serving Institution classification, the Harvard case may even have a beneficial effect of encouraging students of color to seek out institutions that actually welcome and serve them well.

But the truth is that, whether we practice affirmative action or don’t need to, the Harvard/UNC decision will have ramifications for all of our students, for our cities and our society, and we need to meet the consequences head on and with conviction.

We must redouble our commitments to work for racial justice and social equity for all of our students and communities.

We must make sure that every Black, Hispanic and Asian high school student in our cities and communities knows about their options for college and has the support necessary to take full advantage of those options.  Some, perhaps many, will find the Supreme Court decision to be discouraging, a further sign that they are not welcome at the table of economic and social advancement.  We must be aware that a debilitating consequence of this decision could be further decline in the enrollment of low income students of color, already in decline post-pandemic, now possibly hastened by an isolated majority opinion that claims there are no real racial inequities left in America.

We must continue to work for political change in order to get the long-term change in laws, policies and judicial appointments that will rebalance our government.  We are seeing now the consequence of too many Americans staying home on election day.  The gravest consequence of the Trump presidency is not the stunning list of indictments and secret papers in Mar-a-Lago bathrooms.  Nope, the gravest consequence is this Supreme Court whose actions last year and this year and in the years to come will profoundly reshape our lives, our institutions, our sense of community, our rights and our freedoms.